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Fun Arguments To Watch At Net Neutrality Oral Argument

I thought I would point out some of the more fun arguments that may come up on Feb 1 in the oral argument in Mozilla v. FCC, the challenge to the Restoring Internet Freedom Order (RIFO). As always, keep in mind that oral argument is a perilous guide to the final order, and the judges on the panel have a reputation for peppering both sides with tough questions.

Repeal of Section 257(c) Kills RIFO On A Technicality -- If you read the RIFO, you will find that the FCC systemically eliminated every possible source of FCC authority over broadband and preempted the states from creating their own net neutrality rules, but used Section 257(c) to impose a transparency requirement. After the FCC adopted the RIFO, Congress eliminated Section 257(c) as part of the RAY BAUM’S Act. The cherry on the top of winning this argument is that the major champion of pushing through the RAY BAUM’S Act was then-Representative Marsha Blackburn (R-TN). So if the court accepts this argument, it will be now Senator Marsha Blackburn who accidentally saved net neutrality and Title II.

The FCC Wins on Reclassification and Loses on Preemption: The Trump Administration and the ISP industry have challenged various state net neutrality laws on the grounds that the FCC preempted them. Given that we are going to spend a chunk of time at oral argument on this, it’s kind of a surprise that no one has really talked about what would be the ISP’s worst possible result — no federal rule, an FCC powerless to preempt the states, and 50 different state rules.